Kidushin, 73

KIDUSHIN 72-75 - sponsored by a generous grant from an anonymous donor.
Kollel Iyun Hadaf is indebted to him for his encouragement and support and
prays that Hashem will repay him in kind.

1) THE RULE OF "SAFEK D'ORAISA L'CHUMRA"

QUESTION: Rava states that, mid'Oraisa, a Shetuki is Kosher. His reasoning
is that most men who could have fathered the child are permitted to the
woman and their offspring with her would not be a Mamzer (and, if the father
was a Nochri or Eved, the child would also not be a Mamzer, since a child
from such a relationship is not a Mamzer). Hence, if the man went to the
woman, then we apply the principle of "Kol d'Farish m'Ruba Parish," and we
assume that the man was Kosher. If the woman went to the man, then we apply
the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami," which gives the
child a state of Safek, and the Torah says that only a Vadai Mamzer may not
marry a normal Jew, but a Safek Mamzer is permitted.

We know that in normal cases of Safek Isur, there is a difference between an
Isur d'Rabanan and an Isur d'Oraisa. A Safek of an Isur d'Rabanan is treated
leniently, l'Kula, while a Safek of an Isur d'Oraisa is treated stringently,
l'Chumra. Is this principle of "Safek d'Oraisa l'Chumra" a Halachah d'Oraisa
(i.e. the Torah tells us to act l'Chumra in a case of a Safek), or is it a
Takanah d'Rabanan (i.e. mid'Oraisa, one may act leniently in a case of
Safek, but the Rabanan enacted that we act l'Chumra in a case of Safek)?

Most Rishonim maintain that the Halachah of "Safek d'Oraisa l'Chumra" is a
Halachah d'Oraisa. This also appears to be the view of RASHI (DH v'Iba'is
Eima) in our Sugya as well. Rashi says that the reason to be Machmir in a
case of a Safek Mamzer is because of the "Torah's warning in the case of a
Safek," and he does not say that it is because of an Isur d'Rabanan.

The RAMBAM (Hilchos Tum'as Mes 9:12) maintains that the Halachah of "Safek
d'Oraisa l'Chumra" is only a Halachah mid'Rabanan.

All of the commentators on the Rambam question the Rambam's opinion from our
Gemara. Why is it necessary for the Gemara to derive through a special
Derashah that a Safek Mamzer is permitted? Even without any special verse,
we should simply apply the rule that, mid'Oraisa, a Safek is permissible
(and we do not act l'Chumra)! Since, mid'Oraisa, a Safek is Mutar, why
should the verse give a special Heter for a Safek Mamzer more than it for
any other Safek Isur d'Oraisa?

ANSWER: The SHAV SHEMAITSA (1:2) says that even according to the Rambam,
there are certain Sefeikos for which we must act l'Chumra even mid'Oraisa.
In a case where the Safek is whether or not an Isur exists at all (such as
in the case of a doubt whether a piece of meat is Kosher or not), then
mid'Oraisa one may act leniently, since there is no reason to assume that
there is an Isur until it is proven as such. In contrast, in a case where
there definitely is an Isur present, but there is a doubt *where* the Isur
is (such as in the case of two pieces of meat, where one is certainly Asur
and one is certainly Mutar, but it is not known which is Asur and which is
Mutar), one may not act leniently (and eat one of the pieces of meat). Since
there is certainly an item of Isur present, one must be wary of it.

A similar situation can exist in the case of a Mamzer. When we know that, in
a house with several people, there is a Vadai Mamzer in that house but we do
not know who he is, we cannot apply the d'Oraisa rule of "Safek l'Kula," and
we therefore need a special Derashah to permit the Safek Mamzer.

2) THE STATUS OF A "SHETUKI"

QUESTION: Rava states that, mid'Oraisa, a Shetuki is Kosher. His reasoning
is that most men who could have fathered the child are permitted to the
woman and their offspring with her would not be a Mamzer (and, if the father
was a Nochri or Eved, the child would also not be a Mamzer, since a child
from such a relationship is not a Mamzer). Hence, if the man went to the
woman, then we apply the principle of "Kol d'Farish m'Ruba Parish," and we
assume that the man was Kosher. If the woman went to the man, then even
though the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami" applies and
gives the child a state of a *Safek* Mamzer, and the Torah (Devarim 23:3)
says that only a Vadai Mamzer may not marry a normal Jew, but a Safek Mamzer
is permitted.

Why does the Gemara need to answer that the reason a Safek Mamzer, in the
case of a Shetuki, is permitted is because of the special verse in the
Torah? We know that in normal cases of a Safek, a Safek d'Oraisa must be
treated stringently ("Safek d'Oraisa l'Chumra;" see previous Insight).
However, in a case of a S'fek S'feika, one may act leniently. A S'fek
S'feika is a situation in which there is a double Safek, creating two
possibilities of Heter. In such a case, even mid'Oraisa one may act l'Kula.

The case of the Shetuki of our Gemara should also be treated like a S'fek
S'feika. First, there is a doubt about the identity of the father of the
child. Second, there is a doubt about whether the man went to the woman (in
which case the child is permitted because of "Rov") or whether the woman
went to the man (in which case the child might be Mutar and might be Asur,
because of "k'Mechtzah Al Mechtzah Dami"). This is a situation of S'fek
S'feika, with two possibilities of Heter: if the man went to the woman, then
the child is permitted, and even if the woman went to the man, there is a
possibility that the child is permitted. Why do we need a special verse to
teach the Heter of a Safek Mamzer?

ANSWER: The RASHBA explains that in such a case of doubt, we indeed do not
need the verse to teach that the Safek Mamzer is permitted. However, since
there are cases in which this S'fek S'feika does not exist, such as when we
know for certain that the woman went to the man (in which case there is only
one Safek), the verse is still necessary. The Gemara quotes the verse here
only to give a reason why a Safek Mamzer is permitted in *all* cases (even
when there is no S'fek S'feika).

However, if it is true that in the case of a Shetuki there exists a S'fek
S'feika to rule leniently so that, mid'Oraisa, the Shetuki is permitted to
marry a normal Jew, then why does the Mishnah (69a) state that a Shetuki is
permitted to may a Mamzer since neither one is considered "Kahal Vadai" (a
definite member of "the congregation of Hashem") but only "Kahal Safek?" The
Mishnah is referring to all cases of a Shetuki, even when there exists a
S'fek S'feika. Why, then, is a Shetuki permitted to marry a Mamzer? For the
same reason that the Rashba says that a Yisrael may marry a Shetuki with a
S'fek S'feika (since we assume that the Shetuki is not a Mamzer), we should
also *prohibit* the Shetuki from marrying a Mamzer! If we assume, because of
the S'fek S'feika l'Kula, that the Shetuki is not a Mamzer, then why does
the Mishnah call him a "Kahal Safek?" (See PNEI YEHOSHUA.)

The Acharonim answer that the nature of a S'fek S'feika does not create a
status of Vadai, certainty, saying that the person is *certainly* permitted.
Rather, it merely "eases" the magnitude of the Safek, so to speak. The rule
of "Safek d'Oraisa l'Chumra" applies when there are two equal possibilities,
one of Isur and one of Heter. In contrast, when there are more possibilities
of Heter than of Isur, such as in the case of a S'fek S'feika, then one no
longer needs to be concerned for the possibility of Isur. The S'fek S'feika
does not tell us that there definitely is no Isur present; rather, it limits
the extent to which we must worry about the Isur. When discussing whether or
not a Shetuki can marry a Mamzer, a S'fek S'feika will not change the
Shetuki's status. The question with regard to marrying a Mamzer is not
whether or not we must be concerned that the Shetuki has the Isur of Mamzer.
Rather, the question is whether the Shetuki is a Safek or a Vadai, and thus
even with the S'fek S'feika, the Shetuki may marry a Mamzer because his
status of Safek remains.